ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-09-0313

DATE: 20131009

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STANLEY MERCER

Defendant

Paula Thompson, for the Crown

Robert Richardson, for the Defendant

HEARD: October 8, 2013

REASONS FOR JUDGMENT

Boswell j.

[1] Mr. Mercer came to court this week facing a 21 count indictment. Twenty of the counts have been resolved by way of a plea arrangement. One count remained for trial. Specifically, Mr. Mercer is charged with obstructing justice, under s. 139(2) of the Criminal Code of Canada. Essentially, Mr. Mercer is alleged to have lied to the police and the court about his identity, passing himself off as Stanley Hitchcock.

The Allegations

[2] The relevant facts may be briefly stated.

[3] A man named Stanley Hitchcock was identified by local police as having been engaged in discussions, in an online chat room, with a woman from the U.S. who purportedly had a 10 year old daughter. Mr. Hitchcock is alleged to have chatted with the woman about having sex with her daughter. The woman was an FBI agent. The accused is alleged to have made child pornography on the basis of the content of his chat room discussions. He was tracked, through an IP address, to a residential address at 288 Halls Road, R.R. #2 Lakefield, Ontario.

[4] Detective Constable Rob Homeniuk conducted a driver’s license record check under the name Stanley Hitchcock and located a driver’s license bearing a photograph of the accused, noting an address of 288 Halls Road, Lakefield.

[5] D/C Homeniuk obtained a warrant to search 288 Halls Road on October 22, 2008. The warrant was executed on October 23, 2008. The officer knocked on the door and a male answered. The officer asked the male if he was “Stanley”. The male said he was.

[6] While D/C Homeniuk spoke to the accused, another officer searched a computer found in the residence and located an image of an adult male having sexual intercourse with a pre-pubescent girl. The accused was arrested. He was given his 10b right to counsel and cautioned. He indicated that he wished to speak to a lawyer.

[7] The accused was brought before a Justice of the Peace on October 24, 2008. At that time he was represented by duty counsel. He was presented to the Court as Stanley Hitchcock. He did not indicate that his name was really Stanley Mercer. He was asked his date of birth and said October 29, 1954. The case was remanded to October 27, 2008.

[8] On October 27 the accused was again before the Court and again was presented as Stanley Hitchcock. The Crown indicated to the Court that there was some issue about his real identity and asked that the matter be put over for a day. The accused was silent about his real name.

[9] On October 28, 2008, the accused was represented by counsel from Mr. McFadden’s office. The accused had retained Mr. McFadden in relation to all charges against him. He was again presented to the Court as Stanley Hitchcock, this time by his own counsel. He was asked his date of birth again and this time gave his real date of birth – April 25, 1952.

[10] An officer had attempted to speak to the accused in the cells prior to the appearance in Court on October 28, 2008, but the accused would not answer any questions about his identity.

[11] The matter was back in Court on October 31, 2008 for a show cause hearing. At that time, Mr. McFadden appeared for the accused and advised the Court that his real name was Stanley Mercer.

[12] The accused testified that he was born Stanley Richard Charles Mercer on April 25, 1952. He has never been under any misapprehension about his real name or birth date.

[13] In the early 1980’s, perhaps 1982 or 1983, he assumed the name Stanley Hitchcock. He identified two principal reasons for doing so. First, he was facing criminal charges in London, Ontario under the name Stanley Mercer. There was a warrant out for his arrest. He wasn’t ready, he said, to face the charges and sought to evade arrest. Second, he was in a relationship with a woman named Lynn Hitchcock. She wasn’t as confident about the future of the relationship and he wanted to show his level of commitment by assuming her last name.

[14] The accused had a friend whose girlfriend worked at the Social Insurance Office. For $160, he was able to obtain a false SIN card under the name Stanley Hitchcock. It had an error in his date of birth, showing October 29, 1954, but he didn’t, he said, want to spend another $160 to correct it. He used his SIN card to later obtain an Ontario Driver’s Licence and an OHIP card under the name Stanley Hitchcock.

[15] He obtained a Class DZ driver’s license under the name Stanley Hitchcock. He earned his living under that name. He purchased the 288 Halls Road property in that name in 1998. He used that name, exclusively he said, from the early 1980s to 2008.

[16] The claim to exclusivity proved, under cross-examination, to be not entirely accurate. In 1985 the accused was arrested in Brampton. He gave the police a false name, possibly Gary McCann. He was charged and convicted of obstructing justice. He admits that he has used a number of different aliases over the years.

[17] At the time of his arrest, the accused was not asked his name. The police simply proceeded on the basis that he was Stanley Hitchcock. They had no reason to suspect otherwise. At no time did the accused give the police a false name. He simply didn’t correct them. But then again, he had been living as Stanley Hitchcock for 25 years.

[18] In his appearances in Court on October 24, 27 and 28, 2008, the accused did not give a false name. He was obviously aware that he was being referred to as Stanley Hitchcock and he did not provide the Court with his correct legal name. He did knowingly give a false date of birth on October 24, 2008. He said he did so because he had yet to speak to his lawyer, Mr. McFadden, whom he wished to consult about the name issue, amongst other things. He said he had been living as Stanley Hitchcock and had been charged as Stanley Hitchcock and was simply trying to preserve the status quo until he spoke to his lawyer. So he gave the Court Stanley Hitchcock’s date of birth.

The Positions of Counsel

[19] The positions of counsel raise some very interesting issues.

[20] The Crown asserts that the actus reus of the offence is satisfied by the provision by the accused of a false birthdate to the Court on October 24, 2008. She also asserts that the silence of the accused (1) in the face of the clear misapprehension the Court was under in terms of his identity; and (2) the perpetuation of that misapprehension by his provision of a false birthdate is also part of the actus reus of the offence.

[21] The mens rea, in the Crown’s position can be inferred from all the surrounding circumstances. The reason why the accused was using an assumed name in the first place, the omission on the part of the accused to clear up the misapprehension about his name, his knowledge that providing a false name is obstruction, and the potential benefit to him in not being Stanley Mercer for purposes of his bail hearing, combine to satisfy the necessary element of intent, by inference, beyond a reasonable doubt.

[22] Defence counsel argues that neither the actus reus or mens rea of the offence have been made out. First, he submits that the exercise by the accused of his right to silence can never form part of the actus reus of an offence. Moreover, the assertion of his right to silence may not indirectly be used to draw an inference relating to the mens rea of an offence. The choice to exercise the right to silence, he submits, cannot be utilized against the accused, lest the right be rendered meaningless.

[23] Next, he submits that the only act committed by the accused that the Court could rely upon in terms of the actus reus of the offence is the provision of the incorrect birthdate. He argues, however, that the wrong birthdate did not tend to obstruct justice in this instance.

[24] Finally, he argued that the accused at all times demonstrated an intention to clear up the name issue once he spoke to his lawyer, Mr. McFadden. Indeed he did clear up the issue just as soon as he spoke to Mr. McFadden. His evidence of intention ought to be believed, or at the least ought to raise a reasonable doubt about the guilt of the accused on Count 21.

Discussion

[25] Count 21 on the indictment provides specifically as follows:

Stanley Mercer stands charged that he, on or between the 24th day of October, 2008 and the 31st day of October 2008, at the Township of North Kawartha, in the County of Peterborough, unlawfully did wilfully attempt to obstruct the course of justice by lying about his identity, contrary to the provision of section 139(2) of the Criminal Code of Canada.

[26] To establish, beyond a reasonable doubt, that the accused is guilty of the offence of obstructing justice, the Crown must prove:

i. that the accused lied to the police or the Court about his identity;

ii. that the conduct of the accused had a tendency to obstruct, pervert, or defeat the course of justice; and

iii. that the accused intended, by his conduct, to obstruct, pervert, or defeat the course of justice.

[27] Madam Justice Charron described the elements of the offence in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, S.C. J. No. 5, in para. 52, as follows:

…To sum up, the actus reus of the offence will be established only if the act tended to defeat or obstruct the course of justice…With respect to mens rea, it is not in dispute that this is a specific intent offence… The prosecution must prove beyond a reasonable doubt that the accused did in fact intend to act in a way tending to obstruct, pervert or defeat the course of justice. (internal citations omitted).

[28] In my view, the actus reus of the offence has been made out beyond a reasonable doubt. The accused knew shortly after the police entered his residence on October 23, 2008 that they were under the impression that he was Stanley Hitchcock. The warrant to search the residence, which he reviewed, expressly referred to Stanley Hitchcock. He attended before a Justice of the Peace on October 24, 2008. Duty Counsel presented him to the Court as Stanley Hitchcock and asked for a three day adjournment. The Court asked, “what is your date of birth Mr. Hitchcock?” He answered, “October 29, 1954”. He admits he knew that date was false.

[29] As I indicated, the Crown urged the Court to conclude that the omission of the accused to correct the record about his name could also constitute the actus reus of the offence. Such a finding would necessarily engage the Court in an assessment of whether there is a limit on the right to silence of the accused in such circumstances. It is unnecessary for me to engage in that assessment in order to dispose of this case. It is a subject best left to another day.

[30] I find that Mr. Mercer gave a false date of birth to the Court on October 24, 2008. The date of birth he gave was consistent with the date of birth of Stanley Hitchcock as indicated on his driver’s license. He responded to being addressed by the Court as Mr. Hitchcock and he told a lie about his date of birth which had the effect of perpetuating the misconception about his identity. In my view, this conduct is sufficient to constitute the actus reus of the offence.

[31] It is not necessary that the Crown establish that the conduct of the accused actually had the effect of obstructing, perverting or defeating justice. The actus reus is made out if the conduct of the accused has a tendency to obstruct, pervert or defeat the course of justice. The concept of “tendency” has to do with the relationship or connection of the conduct in issue to the course of justice.

[32] In my view, any reasonable person would view the conduct of the accused as likely to hinder, interfere with, obstruct, pervert or defeat justice. The identification of the accused is of significant importance to the Court for a number of reasons. Mr. Mercer has a criminal record. Mr. Hitchcock does not. The criminal record of the accused would be of significance on a bail hearing, or a sentencing if the matter proceeded to that point. It is obviously an important element in making out the offences charged. Misidentifying oneself to the Court is clearly conduct likely to interfere with and/or hinder the processes of the Court.

[33] I am satisfied that the first two essential elements of the offence are made out beyond a reasonable doubt.

[34] Ultimately, the real dispute in this case is whether the accused intended, by his conduct, to obstruct, pervert or defeat justice.

[35] The accused testified that he was only trying to maintain the status quo and maintain his right to silence when he (i) did not correctly identify himself to the Court and (ii) knowingly gave a false date of birth. When he was arrested he asserted his right to silence. When he was approached by Officer Surette in the cells, he re-asserted his right to silence. He insists that he was only waiting for the opportunity to speak to his lawyer, Mr. McFadden.

[36] The accused said repeatedly during his testimony that he did not intend to mislead the Court, but was only trying to get to his lawyer so that his lawyer could clear up any issue surrounding his identity. It is true that on Mr. McFadden’s first appearance in Court in relation to the charges against the accused that he did in fact clear up any issue about identity.

[37] Given that Mr. Mercer elected to testify in his own defence, the principles of R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 are engaged. I must first determine if I believe the evidence of the accused that he never had the specific intent to mislead the court (or otherwise obstruct justice). If I believe his denials, then I must acquit him because the Crown will have failed to establish the requisite intent beyond a reasonable doubt. Even if I conclude that I do not believe the denials of the accused, however, I must still acquit him if his denials, when considered in the context of all the evidence, leave me with a reasonable doubt about his guilt. If I reject the evidence of the accused and find that it does not leave me in a state of reasonable doubt, I may only convict him if I am satisfied of his guilt beyond a reasonable doubt based on the evidence I do accept and rely upon.

[38] I believe the statements of the accused that he did not want to say anything about his identification until after he’d had a chance to speak to his lawyer. Why he believed he needed to speak to his lawyer about his identity was never made clear. There are a number of different inferences available to the Court. At the end of the day, his reason for wanting to wait to speak to his lawyer matters not. I accept that he wanted to wait.

[39] I further find that I have at least a reasonable doubt about whether he meant all along to ultimately clear up the identity issue just as soon as he got the chance to speak to his lawyer. After all, Mr. McFadden did clear the issue up at the earliest opportunity.

[40] That said, even if the accused intended to ultimately clear up the confusion about his name, he nevertheless committed the actus reus of the offence of obstruction on October 24, 2008. I must determine, if I can, what the intent of the accused was at the time he uttered the false date of birth to JP Hiscox on October 24, 2008. In other words, what was the intent of the accused at the time that he committed the actus reus of the offence? Most often it is necessary to look at all the surrounding circumstances in order to draw an inference about the state of mind of an accused at a particular moment in time. In this instance, the Court has direct evidence of intent from Mr. Mercer.

[41] Although he said generally that he never had an intention to mislead the Court, his stated purpose for giving the false date of birth was to “preserve things until he had a chance to talk to his lawyer”. In other words, he wanted to preserve the status quo. Unfortunately the status quo he wanted to preserve was the concealment of his true identity. He had created a false identity years ago in part for the wrongful purpose of evading the police. He wanted to preserve and perpetuate that false identity if only for a short while. He may have ultimately intended to have his lawyer clear the issue up. But pending the discussion with his lawyer, he intended that the Court continue to be misled. He admitted that he knew the provision of a false identification constituted obstruction of justice, given his experience in Brampton in 1986. He chose to perpetuate his false identity, if only temporarily, knowing that to do so constituted obstruction; knowing that it must, at least temporarily, hinder the proceedings against him. In fact it actually did hinder proceedings against him, as is evident from the proceedings in Court on October 27 and 28, 2008 where proceedings against him were adjourned at the request of the Crown to enable further investigation to be made about his identity.

[42] I am satisfied that Mr. Mercer’s intention, at the time he committed the actus reus of the offence, was to obstruct the course of justice. It matters not that he intended to do so only temporarily.

[43] In the result, there will be a finding of guilt on Count 21.

Boswell J.

Released: October 9, 2013